Bridge Capital Investors, II v. Susquehanna Radio
| Decision Date | 01 August 2006 |
| Docket Number | No. 05-11052.,05-11052. |
| Citation | 458 F.3d 1212 |
| Parties | BRIDGE CAPITAL INVESTORS, II, Plaintiff-Counter-Defendant-Appellee, v. SUSQUEHANNA RADIO CORPORATION, Defendant-Counter-Claimant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Josh B. Wages, Gary B. Blasingame, Henry G. Garrard, III, J. Ralph Beaird, Blasingame, Burch, Garrard, Bryant & Ashley, P.C., Athens, GA, for Bridge Capital Investors, II.
Appeal from the United States District Court for the Northern District of Georgia.
Before BLACK, BARKETT and COX, Circuit Judges.
Appellant Susquehanna Radio Corporation (Susquehanna) appeals the district court's grant of summary judgment to Appellee Bridge Capital Investors, II (BCI) in this breach of contract action. Specifically, Susquehanna contends the district court erred when it held Susquehanna's Construction Permit unambiguously became a "Final Order" — as defined in Section 5.4(d) of the parties' Asset Purchase Agreement (the Agreement) — before May 23, 2003, thus requiring Susquehanna to pay BCI the $10 million additional payment set forth in Section 2.4.1 We affirm.
The Federal Communications Commission (FCC) has a standard, two-step procedure for relocating an existing FM radio station to a new community. First, the station's licensee must obtain an FCC Report and Order (Reallotment R&O), which amends the Table of Allotments to allow the station to broadcast from a new community of license. If the FCC issues such a Reallotment R&O, the licensee must then secure a Construction Permit (CP) to build broadcast facilities at the new location. In summary, the licensee must obtain two separate FCC orders to relocate its existing FM radio station: (1) the Reallotment R&O and (2) the CP.
On November 6, 1996, Susquehanna agreed to purchase the assets of two Anniston, Alabama, radio stations (collectively the Station) from Sapphire Broadcasting, Inc. (Sapphire) for $15.05 million. Seeking to relocate the Station to the more lucrative Atlanta-area market of College Park, Georgia, Susquehanna agreed to pay Sapphire an additional $10 million upon satisfaction of three conditions. These three conditions — each of which pertains solely to the CP — appear in Section 2.4 of the Agreement:2 (1) the FCC grants Susquehanna a Class C-3 CP without any "material adverse conditions," as defined in Section 2.4; (2) the CP meets Susquehanna's Atlanta-area broadcast coverage requirements; and (3) Susquehanna "obtains the Final Order for a CP" within six years of the Agreement's May 22, 1997, closing date (i.e., before May 23, 2003). Section 5.4(d) defines the term "Final Order":
The term "Final Order" shall mean an FCC order which is not reversed, stayed, enjoined, set aside, annulled or suspended and with respect to which no timely filed request for administrative or judicial review, reconsideration or stay is pending, and as to which the time for filing any such request, or for the FCC to set aside its order on its own motion, has expired.
After receiving the $15.05 million initial payment for the Station from Susquehanna, Sapphire assigned to BCI its rights to the $10 million additional payment.
Susquehanna filed a Petition for Rule Making with the FCC on November 6, 1997, requesting a Reallotment R&O that would enable it to relocate the Station from Anniston to College Park. Preston W. Small then submitted a competing proposal to move his Midgeville, Georgia, station to Social Circle, Georgia. If granted, Small's counterproposal would have prevented Susquehanna from moving the Station to College Park. On April 28, 2000, the FCC granted Susquehanna's petition and denied Small's counterproposal by means of a Reallotment R&O.
Between June 16, 2000, and August 19, 2002, Small filed multiple petitions for reconsideration of the Reallotment R&O and motions to reopen the record. The FCC denied each petition and motion. On January 22, 2004, the FCC also precluded Small from filing further requests for administrative relief or rehearing. Small then sought review of the Reallotment R&O in the U.S. Court of Appeals for the D.C. Circuit, but the court denied his petition for review on May 19, 2005, and denied his request for rehearing en banc on July 26, 2005. See Small v. FCC, 161 Fed.Appx. 11, 12 (D.C.Cir.2005).
On November 14, 2000, while Small's first petition for reconsideration of the Reallotment R&O was pending, the FCC granted Susquehanna its requested Class-3 CP. In accordance with Section 2.4, this CP did not contain any "material adverse conditions" and satisfied Susquehanna's Atlanta-area broadcast coverage requirements. Susquehanna proceeded to construct its broadcast facilities in College Park and received FCC program test authority to begin broadcasting the Station. Since January 2001, the Station has continuously broadcast from College Park as "All the Hits Q100." Nevertheless, when BCI requested the $10 million additional payment from Susquehanna, Susquehanna asserted its CP did not become a "Final Order" before May 23, 2003, as required under Section 2.4, and thus refused payment.
BCI filed suit on June 29, 2004, alleging Susquehanna's CP became a "Final Order" before May 23, 2003, and, therefore, Susquehanna's refusal to make the $10 million additional payment constituted a breach of contract. Both parties moved for summary judgment. On January 26, 2005, the district court determined Susquehanna's CP became a "Final Order" prior to May 23, 2003, and BCI was thus entitled to summary judgment on its breach of contract claim. The district court accordingly awarded BCI $10 million plus interest and attorney's fees and costs. This appeal ensued.
"We review de novo the district court's grant of summary judgment, applying the same legal standards as the district court, and viewing all facts and reasonable inferences drawn therefrom in the light most favorable to . . . the non-moving party." Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.2000).
This appeal presents the following question of contract interpretation: Did Susquehanna's CP unambiguously become a "Final Order" — as defined in Section 5.4(d) of the Agreement — before May 23, 2003? To answer this question, we must look first to Section 15.8, which instructs us to construe the Agreement in accordance with New York law. Under New York law, "[w]hether a contract is clear or ambiguous is for the court to determine as a matter of law." Fetner v. Fetner, 293 A.D.2d 645, 741 N.Y.S.2d 256, 258 (N.Y.App.Div.2002). "[W]here the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument," id., and "the case is ripe for summary judgment," Am. Express Bank, Ltd. v. Uniroyal, Inc., 164 A.D.2d 275, 562 N.Y.S.2d 613, 614 (N.Y.App.Div. 1990).
With these basic rules of contract interpretation in mind, we begin our analysis of the Agreement's relevant language. Again, Section 2.4 stipulates the $10 million additional payment "shall only be due and owing by [Susquehanna] to [BCI] if [Susquehanna] obtains the Final Order for a CP" before May 23, 2003. As explained above, the Reallotment R&O and the CP are separately issued FCC orders. Accordingly, the parties could have made the additional payment due and owing upon, among other events, Susquehanna's acquisition of (1) the "Final Order" for a Reallotment R&O (2) the "Final Order" for a CP; or (3) the "Final Order" for both a Reallotment R&O and a CP. The language of Section 2.4 unambiguously indicates the parties opted for the second option and made the additional payment due and owing only upon Susquehanna's acquisition of "the Final Order for a CP."
We now turn to Section 5.4(d) to determine whether the CP became a "Final Order" before May 23, 2003. Section 5.4(d) sets forth three requirements for the CP to qualify as a "Final Order":
(1) the CP has never been "reversed, stayed, enjoined, set aside, annulled or suspended";
(2) "no timely filed request for administrative or judicial review, reconsideration or stay is pending" "with respect to" the CP; and
(3) (a) "the time for filing any such request [for administrative or judicial review, reconsideration or stay of the CP] . . . has expired," and
(b) "the time . . . for the FCC to set aside [the CP] on its own motion . . . has expired."
After reviewing the parties' briefs, the record, and the relevant statutes, regulations, and case law, we conclude each of these three requirements was satisfied before May 23, 2003. First, the CP was never "reversed, stayed, enjoined, set aside, annulled or suspended." Second, the Secretary of the FCC, Marlene H. Dortch, certified that "no request for administrative or judicial review, reconsideration or stay has been filed with respect to [the CP]." Third, the "time for filing any such request [for administrative or judicial review, reconsideration or stay of the CP]" expired on December 17, 2000 (i.e., 30 days after the FCC issued public notice of the CP on November 17, 2000), see 47 U.S.C. §§ 402(b)-(c), 405(a), and the "time for . . . the FCC to set aside [the CP] on its own motion" expired on December 27, 2000 (i.e., 40 days after the FCC issued public notice of its grant of the CP on November 17, 2000), see 47 C.F.R. § 1.117. In short, the CP became a "Final Order," as defined in Section 5.4(d), no later than December 27, 2000 — nearly two and a half years before the Agreement's six-year deadline. Accordingly, we hold Sections 2.4 and 5.4(d) unambiguously obligate Susquehanna to pay BCI an additional $10 million.
Seeking to make an end-run around the Agreement's unambiguous language, Susquehanna argues Section 5.4(d)'s second requirement — i.e., "no timely filed request for administrative or judicial review . . . is pending" ...
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